WORD­PLAY RULES

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

ceed­ings, it said very lit­tle about them, other than mak­ing the ob­ser­va­tion that Cochrane had claimed that the is­sues in the High Court case were dif­fer­ent from those be­fore the ASA.

Rather, the ASA reached its de­ci­sion not to deal with the mat­ter as fol­lows. It said that the ASA can only deal with ad­ver­tise­ments, and that the ASA’s ju­ris­dic­tion only re­lates to the con­tent of pub­lished ad­ver­tis­ing. It said that the term “ad­ver­tise­ment” is de­fined in Clause 4.1 of sec­tion 1 of the ASA Code to mean “any vis­ual or au­ral com­mu­ni­ca­tion, ref­er­ence or no­ti­fi­ca­tion which is in­tended to pro­mote the sale ... of any goods or ser­vices”.

This case, said the ASA, did not deal with an ad­ver­tise­ment at all. What it dealt with in­stead was MSys­tems’ pol­icy of bid­ding on Adwords like “clear vu”. The ASA put it as fol­lows: “It ap­pears as if the com­plainant is not tak­ing is­sue with the ac­tual con­tent or claims of the re­spon­dent’s GoogleAds that ap­pear when one does a search for ‘clearvu’, but rather with the fact that the re­spon­dent uses the key­word ‘clearvu’ to

There is a clear distinc­tion be­tween the key­word used and the GoogleAds ad­vert that the key­word brings up

“the Ad­word is not re­garded as the ad­ver­tise­ment it­self, but rather as a trig­ger that en­sures that one’s ad­ver­tise­ment is dis­played”.

The ASA also re­ferred to Google’s own web­site re­gard­ing Adwords, which the ASA said makes it quite clear that “the ‘ad’ would be re­garded as ad­ver­tis­ing, and not the ‘search terms’ opted for”.

Fi­nally the ASA made the point that, even though Google’s terms and con­di­tions for Adwords (which M-Sys­tems would have agreed to) say that the ser­vice must not in­fringe any ad­ver­tis­ing codes of prac­tice, this does have the ef­fect of ex­tend­ing the scope of the ASA Code to in­clude AdWords bought on a “be­hind the scenes” ba­sis.

So Cochrane re­mains un­able to stop its com­peti­tor from us­ing its trade­mark Clearvu as a key­word, some­thing which has the ef­fect that peo­ple search­ing for that trade­mark get to see ads for M-Sys­tems’ com­pet­ing prod­uct. It sounds so un­fair… But it does mean that South African law re­gard­ing key­word us­age of trade­marks is in line with the law in other parts of the world.

Pic­ture: THINKSTOCK

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